The Innocence Project recently released a report, 250 Exonerated: Too Many Wrongfully Convicted, which details 250 exoneration cases and includes statistics on common causes of the wrongful convictions.   The organization has only been around since 1992 but has help free 250 individuals who have all been wrongfully convicted but later declared innocent by the courts.  There are 8 people from Ohio that were wrongly convicted but later exonerated with the help of this organization. 

The report’s key findings:

• There have been DNA exonerations in 33 states and the District of Columbia.

• The top three states for DNA exonerations are New York (with 25), Texas (with 40) and Illinois (with 29).

• 76% of the wrongful convictions involved eyewitness misidentification.

• 50% involved invalidated or improper forensic science.

• 27% relied on a false confession, admission or guilty plea.

• 70% of the 250 people exonerated are people of color (60% are black; nearly 9% are Latino; 29% are white).

Browse the Profiles of those Freed

Browse or search by name, state or year.  If using the browse function, you can sort by name or state just by clicking the column heading.   There are 8 people from Ohio that were wrongly convicted but later exonerated with the help of this organization.  All 8 were later freed using DNA testing on evidence originally collected by the police.  Using this same DNA results, the police were able to find 6 of the real perpetrators.   Read their personal stories by clicking on their name. 

Donte Brooker , exonerated 2005

Danny Brown, exonerated 2001

Clarence Elkins, exonerated 2005

Joseph Fears Jr., exonerated 2009

Anthony Michael Green, exonerated 2001

Robert McClendon, exonerated 2008

Brian Piszczek, exonerated 1994

Walter Smith, exonerated 1996

 Background about the Organization

The Innocence Project was established in 1992 at the Benjamin N. Cardozo School of Law in New York City.  The Innocence Project is a national litigation and public policy organization dedicated to exonerating wrongfully convicted people through DNA testing and reforming the criminal justice system to prevent future injustice.

More here.

     Attorney General Eric Holder has decided to try five prisoners in the war on terror, including Khalid Sheikh Mohammed, on criminal charges in New York for the attacks of September 11.  They will face the death penalty.

    Yesterday Attorney General Eric Holder released a statement in which he said:

For the past several months, prosecutors at the Department of Justice have been working diligently with prosecutors from the Pentagon’s Office of Military Commissions to review the case of each detainee at Guantanamo who has been referred for prosecution. Over the past few weeks, I have personally reviewed these cases, and in consultation with the Secretary of Defense, have made determinations about the prosecution of ten detainees now held at Guantanamo, including those charged in the 9/11 plot and the alleged mastermind of the Cole bombing.

Today, I am announcing that the Department of Justice will pursue prosecution in federal court of the five individuals accused of conspiring to commit the 9/11 attacks. Further, I have decided to refer back to the Department of Defense five defendants to face military commission trials, including the detainee who was previously charged in the USS Cole bombing.

The 9/11 cases that will be pursued in federal court have been jointly assigned to prosecutors from the Southern District of New York and the Eastern District of Virginia and will be brought in Manhattan in the Southern District of New York. After eight years of delay, those allegedly responsible for the attacks of September the 11th will finally face justice. They will be brought to New York to answer for their alleged crimes in a courthouse just blocks from where the twin towers once stood.

     In this report CNN quotes Senator John Cornyn (R-TX) as opposing the trials in New York because it "needlessly compromises the safety of all Americans," and Representative Lamar Smith (R-TX) as stating that trials in criminal court because it would "prioritize the rights of terrorists over the rights of Americans to be safe and secure."  The report also quotes Kristen Breitweiser, whose husband was killed in the attack, as supporting the administration's decision because "it would give many of us access to attend the hearings … this will be our opportunity to see justice served and have our day in court."  Josh Gerstein at The Politico reports that many other families of victims of the attack are opposed to the trial, and would rather see the plotters tried in military court.  House Minority Leader John Boehner (R-OH) issued a statement in which he said:

The Obama Administration’s irresponsible decision to prosecute the mastermind of the 9/11 attacks in New York City puts the interests of liberal special interest groups before the safety and security of the American people. The possibility that Khalid Sheik Mohammed and his co-conspirators could be found ‘not guilty’ due to some legal technicality just blocks from Ground Zero should give every American pause.

     In my opinion, the Attorney General made the correct decision.  Even if acquitted, the defendants would not be released from custody.  They are admittedly supporters of al-Qaeda who have waged war against us, and regardless of the outcome of any military or civilian trial we may continue to detain them as prisoners of war for the duration of this conflict – which may be a very long time.

     But there is a more fundamental reason to try these persons in America, in New York, in federal court.  Trial in civilian court will demonstrate to the rest of world that even in the face of a massive attack we have faith in our legal institutions and constitutional processes.   As an attorney, I am proud of the criminal justice system, and I have confidence that our prosecutors, judges, and juries will determine the truth and mete out appropriate punishment.  As an American citizen, I am proud that we have the courage to try these men as criminals – that we say to terrorists around the world – WE ARE NOT AFRAID!

A couple of weeks ago I blogged about the pending criminal trial of former Bear Stearns executives Ralph Cioffi and Matthew Tannin on charges they defrauded investors in connection with the failure of their hedge funds.  While I did not agree with those who characterized the case as one of "spin versus fraud", I did believe the prosecution would have a hard time proving criminal intent.  Apparently, the jury concurred because Cioffi and Tannin were acquitted this past Tuesday by a "jury of mostly working class Americans."  Now, the question becomes how much steam the government has left to pursue criminal convictions against other executives tied to the financial crisis–like some of those at AIG and Lehman.  Sorting that out will involve determining how much of what went wrong for the prosecution in this case is limited to its particular facts.  Here's a short list of possible explanations for why the jury sided with the defense:

• The jury was confused by the complexity of the case.  As the Wall Street Journal put it:

Throughout the case, the jury was bombarded with mortgage-related lingo — "collateralized debt obligations," "credit models" and the like — in an attempt to explain how two Bear Stearns funds run by the defendants imploded.

• To the extent the jury's confusion was alleviated, it was likely in favor of the defendants because of

the expert testimony of R. Glenn Hubbard . . . the dean of Columbia University’s business school, who said he reviewed data about the funds from the relevant period and said the men could reasonably expect to return to profitability, and that it was reasonable for them to ask investors for more money. . . . Hubbard, who is a former economic advisor to President George W. Bush and whose research for the Bear trial came with a $100,000 price tag declined to comment to the blog.

• The jury was not permitted to hear about a particularly incriminating email:

Today, Judge Frederic Block of Brooklyn, who was considered to be a great draw for the defendants, ruled that prosecutors could not introduce as evidence an email written by one of the defendants, in yet another apparent setback for the government’s case. In the email, Tannin wrote that hedge funds he helped run could “blow up.” Months later they did.

Personally, I think the government will continue to pursue criminal convictions where appropriate.  A spokesman for the government had this to say following the acquittal:

Honesty and integrity are the principles upon which our financial markets function. Enforcing and protecting those principals will continue to be one of the principle efforts of this office.

By the way, if you want a good read that will help you make up your own mind I can recommend "House of Cards" (the audio version is highly entertaining).

But this time it's not because of a technicality. A Pennsylvania judge has been sending children to jail on first-time misdemeanor offenses in order to provide financial support to the for-profit prison company that paid him millions under the table. Can you imagine losing two years of your childhood at the age of twelve for taking your mom's car on a joyride that injured nobody? It's a real crime.

On Thursday, Oct. 1, 2009 The Akron Bar Association and The University of Akron School of Law presents The ABA Ohio Death Penalty Report:  Innocence and E-Discovery.  Seventeen years after Robert McClendon was sentenced to life in prison for alleged rape, a joint investigation by the Ohio Innocence Project and the Columbus Dispatch led to DNA testing that proved his innocence and exonerated him of the crime.  He was released from prison in August 2008.  Topics of discussion will include:

12:30 p.m.      REGISTRATION

1:00 p.m.        THE ABA REPORT ON THE OHIO DEATH PENALTY 
                              Phyllis Crocker, Assoc. Dean & Chair of the Ohio Assessment Team,
                              Cleveland-Marshall Law School
                              Prof. Marge Koosed, University of Akron School of Law  

2:00 p.m.        INNOCENCE PROTECTION IN OHIO
                               Prof. Mark Godsey, Director of the Ohio Innocence Project,
                               University of Cincinnati College of Law
                              James Petro, former Ohio Attorney General
                              Robert McClendon, DNA exoneree

 3:00 p.m.        BREAK

3:15 p.m.          DISCOVERY IN CRIMINAL AND CIVIL CASES
                               Cuyahoga County and Statewide Criminal Discovery Reform
                               Ian N. Friedman, President of the Ohio Association of Criminal Defense Lawyers
                               E-Discovery Practice in Civil Cases and Federal Rule Update
                               Prof. Bernadette Genetin, University of Akron School of Law  

4:15 p.m.        ADJOURNMENT

3.0 CLE credits are being offered.  The seminar fee if paid by 9/24 for ABA Members is $105, Non-Member $130, and New Lawyer (CLE Exempt), Non-lawyer, Paralegal is $75.  If paid after 9/24 the seminar fee for ABA Members is $130, Non-Member $155, and New Lawyer (CLE Exempt), Non-lawyer, Paralegal is $100.  This seminar is free for students and faculty.

Sometimes I am amazed at what I find when helping patrons.  Here is one of those “gems of information.”

Innocent victims of violent crime can apply online on the Attorney General’s web site for compensation of up to $50,000 in expenses.  There are strict guidelines of course.

First, the crime must be reported to law enforcement within 72 hours of the crime and you must file your application for funds with the Attorney General within two years of the date of the crime.  Here is some more information you should know.

Who is eligible:

●  Those injured during a violent crime
●  Dependents of people killed in a crime
●  Anyone responsible for a crime victim’s finances

What is covered:

●  Medical expenses
●  Counseling
●  Lost wages due to the crime or court proceedings
●  Crime scene cleanup
●  Cost to replace items taken as evidence
●  Funeral and burial expenses
●  Financial support for dependents of deceased victim

 
What is not covered:

●  Stolen, damaged or lost property
●  Pain and suffering
●  Expenses that are covered by other sources, such as insurance
●  Anyone who engaged in misconduct that caused or contributed to the injuries

~~~~~~~~~~~~~~~~~~~~~

Is there any victim services nearby?  There are local victim services agencies that can assist you.  For county Victims Services agencies nearby search here by county.

Where is the form?  More information plus online form here.

Attorney fees?  Attorneys who represent a victim for reparations collect their fees from the state Attorney General, not the victim!  (R.C. 2743.71(B)(3) ).  Here is the form the attorney uses.

What other victim services are offered by the Attorney General?  More about victim services, including victim notification of the criminal case and custody status of offender, here.    

Already filed with the Attorney General?  After you file your claim, you can track the status of it online here.

Not happy with your results with the Ohio Attorney General?
Appeal the decision to the Court of Claims of Ohio  and for more detailed information about Ohio’s victims of crime procedures visit the Court of Claims site.    

For more general information about the functions of the Ohio Attorney General office and other services provided, follow the links.

Sometimes when I am helping library users, they ask for a “simple” description of what happens in a trial.  Cases can get complicated very quickly and  if you are litigating your own case, you need to know what the next step is to prepare your case properly.  Today I am providing links to websites that describe the stages of a typical civil and criminal trial.  Some of the sites are from other state courts but are general enough that they still apply for Ohio.

Civil Trials

What happens in a pre-trial conference? 
What is discovery? 
What is the difference between a motion and a pleading? 

To answer these questions take a look at these sites:

Steps in a Trial, by the American Bar Association, organizes links in the same order you would come across them in a case.  Click the links to get a description of the step.  More information here.

The Anatomy of a Trial describes the process in paragraph format, but still keeps it brief.  Look here  and here .

Criminal Trials

What happens during initial appearance? 
How do you present evidence? 
What is a rebuttal?

The American Bar Association (ABA)  and Findlaw.com (site owned by Thompson Reuters)   describe the steps in a criminal case.  Also, the ABA has a Criminal Case diagram.

Audio and Video Ohio Court Case Tours

For strictly an Ohio focus, try the Ohio Case Tours on the Ohio Legal Services site.  The purpose of the Court Case Tours is “to help the residents of Ohio learn more about their local courts, these audio and video files provide a quick and simple explanation of what local courts do.” The trial steps are broken down into one minute video and audio segments starting with pre-trial proceedings through verdicts at the end of a trial.  Courts covered are civil, criminal, and various court divisions like domestic relations, probate, mayor’s court, traffic court, etc. 

Need a more detailed description of the various Ohio Courts?

The Ohio Supreme Court has a nice description here  and a chart of the judicial structure .  

What is the difference between the Federal Court System and the State Court System?

A general overview of the Federal Courts and a brief explanation of Article III courts and Article I courts can be found here.

A great side-by-side comparison chart that looks at structure, types of cases heard and how judges are selected is found here.  

Next week:

So you want to sue the government?  There’s a court for that!

     Get ready for new methods of computing time periods in federal court litigation.  On March 26, 2009, the U.S. Supreme Court  approved proposed amendments to the Federal Rules of Appellate Procedure, Bankruptcy Procedure, Civil Procedure, and Criminal Procedure that will change many time periods set out in these rules and will also change the methods of computing time under these rules.  The rules will take effect on December 1, 2009, absent congressional action to reject, modify, or defer the amendments.   

     The Federal Rules' comprehensive time-computation project was undertaken in response to frequent complaints regarding the time and anxiety and the risk of error inherent in current time computation methods.  Billed as "minor" changes, most proposed rules will further the following principles (1) a "days are days" approach to counting time periods, which will eliminate the current method of omitting intermediate holidays and weekends when the time period is short; (2) a lengthening of shorter time periods to compensate for the new "days are days" approach; and (3) a preference for providing time periods that are less than 30 days in multiples of 7 so that deadlines will less frequently fall on weekends.

     In other time-computation changes, the proposed amendments to the civil rules will clarify how to count forward when a time period is measured after an event and a deadline falls on a weekend or holiday (e.g., 14 days after receipt of a motion); how to count backward when a time period is measured before an event and the deadline falls on a weekend or holiday (e.g., at least 21 days before a scheduling conference is to be held); and how to compute hourly time periods.  The proposed civil rules will also create filing deadlines for electronic filings:  Generally, unless a statute or rule provides otherwise, the last day of a time period for an electronic filing will end at midnight in the court's time zone.  Explanations of the new rules and the proposed language can be found here.

    Additionally, Congress passed H.R. 1626, which amends 28 statutory deadlines to conform with the proposed time-computation amendments to various Federal Rules,  and President Obama signed H.R. 1626 on May 7, 2009.  The statutory changes, like the proposed amendments to the Federal Appellate, Bankruptcy, Civil, and Criminal Procedural Rules, have an effective date of December 1, 2009.  The Act and the amended statutes can be viewed here. 

     At first glance, these rules appear to be no more than mere counting changes.  But take a closer look.  Each set of amended rules — appellate procedure, bankruptcy procedure, civil procedure, and criminal procedure — include rules of more substance.

     In addition to the relatively "minor" time-computation changes, for example, some of the proposed new Federal Rules would have greater impact as follows:

• Proposed Fed. R. Civ. P. 62.1 and Fed. R. App. P. 12.1 – Proposed Civil Rule 62.1 would provide a consistent procedure for obtaining an "indicative ruling" from a district court judge when a case is on appeal.  When a case is appealed from a district court, the district court loses jurisdiction to consider issues involving the case, but a practice has arisen in most circuits that permits district courts to make an "indicative ruling," i.e., to indicate the ruling it would make if it retained jurisdiction.  Proposed Civil Rule 62.1 will provide a uniform procedure for the federal courts that will permit the district court to defer ruling, deny the motion, or indicate either that the motion raises a substantial issue or that it would be inclined to grant the motion if the case were remanded.  Requests for indicative rulings are typically prompted by Rule 60(b) motions for relief from order or judgment that are filed after an appeal has been granted.  Proposed Fed. R. App. P. 12.1 is consistent with Civil Rule 62.1 and facilitates remand to the district court when the district court indicates that it would grant the motion if the appellate court remands for that purpose or indicates that the motion raises a substantial issue.
• Proposed Amendment to Fed. R. Civ. P. 15(a) — Changes the time period for amending, as of course, a pleading to which a responsive pleading is required.
• Proposed Amendment to Fed. R. Civ. P. 48 — Permits a court to poll the jury individually and requires the court to do so on request of a party.
• Proposed Amendment to Fed. R. Civ. P. 50, 52, 59(b), (d), (e) – Changes current 10-day time periods to 28-day time periods for the following:
  • motions for judgment notwithstanding the verdict (renewed motion for judgment as a matter of law) under Rule 50(b),
  • motions to amend a judge's findings of fact following the entry of judgment in a bench trial under Rule 52;
  • motions for a new trial or to amend or alter a judgment in a jury trial, under Rule 59.
• Proposed Amendment to Fed. R. Crim. P. 41 — Proposed Criminal Rule 41 is amended to provide clarification on how warrant procedures apply to seizure of electronically stored information (ESI).  Rule 41 adopts a "two-stage" procedure.  It authorizes (1) a first-stage seizure of the electronic storage media or seizure and copying of ESI; and (2) a second-stage review of the medium or ESI for information consistent with the scope of the warrant, at an offsite location.  

Criminal law is not my area, but the Supreme Court on Monday agreed to hear two cases. In one, "a minor was given a life prison sentence for a crime in which the victim was not killed.  The Court became aware last October that a case on that issue was on its way — the case of Joe Harris Sullivan, who was given life without parole in Florida after a conviction for sexual battery, a crime committed when he was 13 years old.  Before that case was actually filed, however, the case of Terrance Jamar Graham arrived; he was given life without parole in Florida after violating his probation after an earlier guilty plea for armed burglary; he was 17 at the time of the life sentence." The SCOTUS blog has the full rundown.

The Court has already ruled that the death penalty imposed on minors is unconstitutional. Now the question is whether we can constitutionally impose a sentence of life without parole on minors–in two cases that don't involve the loss of life of a victim. What do you think?

The Castle Doctrine is a hot topic this week due to a recent story in the Beacon Journal and library patrons are calling our Reference Desk asking about Ohio's version of this law. 

The new version of the Castle Doctrine was signed into law last June as Senate Bill 184 and went into effect on September 9, 2008.  As Governor Strickland signed the bill, he stated: "This legislation offers needed clarifications to Ohio's concealed carry law and strengthens legal protections for citizens who defend themselves and their families against intruders in their homes." 

The law also includes defending yourself in your vehicle.   Here are some of the major sections in the Ohio Revised Code with the new wording:

R.C. 2901.05 Burden of Proof and Self-defense (rebuttable presumption)

R.C. 2901.09 No duty to retreat in residence or vehicle

R.C. 2307.601 No duty to retreat in residence or vehicle   

R.C 2923.12 Carrying concealed weapons (long)

Since the law changed many sections of the Ohio Revised Code, it may be easier to read the final version of the bill here.

The general description of the new Castle Doctrine:

Under certain changes enacted in 2008, a person does not have a duty to retreat from the residence that they lawfully occupy before using force in self-defense or defense of another. Additionally, there is no duty to retreat if the person is lawfully in that person’s vehicle or lawfully is an occupant in a vehicle owned by an immediate family member of that person. However, being a lawful occupant of a residence or vehicle is not a license to use deadly force against an attacker. The person who is attacked, without fault of his own, may use deadly force only if he reasonably and honestly believed that deadly force was necessary to prevent serious bodily harm or death. If the person does not have this belief, he should not use deadly force. Again, if it does not put your life or the life of others in danger, you should withdraw from the confrontation if it is safe for you to do so.

 The law presumes you to have acted in self-defense or defense of another when using deadly force if the victim had unlawfully and without privilege entered or was in the process of entering the residence or vehicle you occupy. The presumption does not apply if the defendant was unlawfully in that residence or vehicle. The presumption does not apply if the victim had a right to be in, or was a lawful resident, of the residence or vehicle.

The presumption of self-defense is a rebuttable presumption. The term “rebuttable presumption” means the prosecutor, and not the defendant, carries the burden of producing evidence contrary to the facts that the law presumes. However, a rebuttable presumption does not relieve the defendant of the burden of proof. If the prosecutor provides sufficient evidence to prove that the defendant created the confrontation or that the use of deadly force was not reasonably necessary to prevent death or great bodily harm then the presumption of self-defense no longer exists.

Source: Ohio’s Concealed Handgun Law with the up-to-date Castle Doctrine, page 22 (36 pages long) .  The elements of self-defense begin on page 20.  This document was published in 2009 by the Ohio Attorney General and includes the new law.

For more information on Ohio’s Concealed Handgun law, visit the Ohio Attorney General page on the subject. 

 Next week, we will learn where to look for federal regulations.

On Wednesday, the military’s highest court on war crimes prosecutions gave the Obama Administration a requested 120-day delay of a pending case to allow a new study of the fate of prisoners at Guantanamo Bay.

Mark A. Godsey, professor of law at the University of Cincinnati College of Law and director of the Ohio Innocence Project will visit Akron Law on Wednesday, Feb. 4 at 4:30 p.m. in Room W206. Professor Godsey will deliver a presentation on DNA Exonerations. Joining him will be recent DNA exoneree Robert McClendon, who was released this past August after spending 18 years in prison for a crime he did not commit. This lecture is free and open to the public.

Professor Lisa Lerman from Catholic Law School will present “Re-examining the Lake Pleasant Bodies Case: A Case Study in Ethical Decision-making” on Monday, Nov. 10 at 3 p.m. in Room 151 at Akron Law. Coffee and cookies will be served along with this presentation.

More than 30 years ago, two American lawyers named Frank Armani and Francis Belge represented an accused murderer, Robert Garrow. Garrow told his lawyers that he had killed several teenagers, and he told the lawyers where their bodies were located. The lawyers tried to negotiate a plea for their client but were turned down.

During a trial of the first murder charge, Garrow confessed to the murders under oath. The press and the public then realized that the lawyers had known all along about their client's crimes, and there arose a hue and cry against the lawyers. The lawyers faced criminal charges, a disciplinary investigation, death threats, ostracism within their community, and extensive damage to their law practices.

The case remains a central one in legal ethics instruction because it offers a vivid illustration of the potential moral conflict presented by the duty to protect confidences.

Professor Lerman's talk will revisit the many difficult ethical decisions that confronted Armani, and will use the case to illustrate the pedagogical value of in-depth study of legal ethics cases.

Akron Law welcomes distinguished judge, Jed S. Rakoff, United States District Judge for the Southern District of New York as part of its annual Jurist-in-Residence program.

Judge Rakoff will deliver a public lecture titled Law and Science on Sept. 24 at 3 p.m. in Room 151 at The University of Akron School of Law. A reception will immediately follow the lecture in the law school atrium. The lecture is FREE and open to the public.

Judge Rakoff is a leading authority on the law of white-collar crime, authoring many articles on that topic. In 2002, in United States v. Quinones, Judge Rakoff declared the federal death penalty unconstitutional stating that the death penalty created "an undue risk that a meaningful number of innocent persons" were being executed. Although the decision was reversed by the U.S. Court of Appeals for the Second Circuit, the New York Times referred to the decision as "a cogent, powerful argument that all members of Congress – indeed, all Americans – should contemplate." 

Judge Rakoff began his legal career in 1969 as a law clerk to the late Honorable Abraham L. Freedman, United States Court of Appeals Third Circuit. In 1970 he joined Debevoise, Plimpton, Lyons & Gates as an associate. From 1973-80, Judge Rakoff was assistant United States attorney for the Southern District of New York, including chief of business and Securities Fraud Prosecutions from 1978-80. In 1980, he joined Mudge, Rose, Guthrie, Alexander and Ferdon as a litigation partner, a position he held until 1990. He then joined Fried, Frank, Harris, Shriver & Jacobson as a litigation partner, where he remained until 1996. He is the author of four books, over 100 published articles, over 250 speeches, and over 550 judicial opinions. He has been a Lecturer in Law at Columbia Law School since 1988.

Judge Rakoff served on the Board of Managers at Swarthmore College from 2004-08. He currently serves on the Governance Board of the MacArthur Foundation Initiative on Law and Neuroscience, as well as the National Academies Committee to Prepare the Third Edition of the Federal Judges' Manual on Scientific Evidence. Judge Rakoff is currently chair of the Criminal Justice Advisory Board, SDNY; the Grievance Committee, SDNY; the Second Circuit Bankruptcy Committee; and the Honors Committee, New York City Bar Association. From 1986-89, he was chair of the Criminal Law Committee at the Association of the Bar of the City of New York. He is a fellow (now Judicial Fellow) of both the American College of Trial Lawyers and the American Board of Criminal Lawyers. Judge Rakoff was also director for the New York Council of Defense Lawyers from 1990-94.

Jed S. Rakoff has been a member of the federal judiciary since 1996. He received his B.A. at Swarthmore College; M.Phil. at Oxford University; J.D, cum laude,. from Harvard Law School; LL.D., with honors, from Swarthmore College; and LL.D., with honors, from St. Francis University.

While at Akron Law, Judge Rakoff will deliver a public lecture entitled Law and Science, lead a faculty workshop, and meet with students and members of the law school community. He will also serve as a moderator for a panel entitled Neuroimaging, Deception and Neuroskepticism at the Neuroscience, Law, and Government Symposium sponsored by Akron Law September 25 & 26.

A friend of mine was just denied when he tried to renew his Ohio license to carry a concealed handgun.  The letter from the Summit County Sheriff's Office identified the reason for denial as the presence on his record of two minor misdemeanor marijuana possession convictions from 1996 and 1997, when my friend was 19 and 20 years old, respectively.  I have lots of questions about the particulars of my friend's denial, but irrespective of the facts of that specific case, an interesting question is raised:  in general, what factors should lead to the denial of a concealed carry permit?

As I have blogged before, Ohio is a "shall issue" state for concealed carry licenses.  This means that if certain factors are met by an applicant for a license, the Sheriff has no discretion to deny the application.  Under Ohio law, the factors include an absence of certain criminal conduct on one's record.  For example, one cannot be a fugitive from justice or presently under indictment for:

a felony; an offense [under certain state code provisions] … that involves the illegal possession, use, sale, administration, or distribution of or trafficking in a drug of abuse; a misdemeanor offense of violence; or [assault or negilgent assault].

In a similar vein, one cannot ever have previously been convicted of or pleaded guilty to

a felony or an offense [under certain state code provisions] … that involves the illegal possession, use, sale, administration, or distribution of or trafficking in a drug of abuse; [or have] been adjudicated a delinquent child for committing [one of the above acts]; [or have] been convicted of, pleaded guilty to, or adjudicated a delinquent child for committing [assault on] a peace officer.

Also, within the past three years, one cannot have "been convicted of or pleaded guilty to a misdemeanor offense of violence."

OK, if you want a concealed handgun license:  no felonies, no drug convictions, no assaulting police officers, and no recent offenses of violence.  Seems pretty fair to me.

But following this summer's Supreme Court decision in D.C. v. Heller (which I blogged about here), we are going to see some litigation in this area.  Heller says that individuals have a fundamental right to keep and bear arms in self defense.  The government can regulate that right, but we don't know where the limits are yet.  Many people are ready to argue that felons should be able to carry concealed (not in prison, presumably, but once they have paid their debt to society).  As for people with minor misdemeanor dope possession convictions that are over a decade old?  I'm pretty sure even more people would be willing to argue that those folks shouldn't be barred.  What do you think?  (Incidentally, my friend's convictions were under an Akron municipal ordinance, not one of the state statutes listed in the concealed carry licensing statute.  I'm not licensed to practice Ohio law, but, under the precise wording of the concealed carry statute, I think he has a good argument that his earlier convictions don't preclude him from receiving a license.)

Yesterday a federal appeals court released unclassified portions of its decision in Parhat v. Gates. Here's the lead from the New York Times:

In the first case to review the government’s secret evidence for holding a detainee at Guantánamo Bay, Cuba, a federal appeals court found that accusations against a Muslim from western China held for more than six years were based on bare and unverifiable claims.

Huzaifa Parhat, meet Gordon Hirabayashi.

Huzaifa Parhat is a Chinese citizen of the ethnic Uighur Muslim minority in Western China. What's the connection between him and a retired Japanese American sociology professor? Let's review:

1. After the World Trade Center attack on September 11, 2001, Congress authorized the President to use "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks…" The President ordered the Armed Forces to invade Afghanistan.
2. Parhat fled China in May 2001 in response to, among other things, forced abortions, high taxes, and the taking of property. He arrived at an Uighur camp in Afghanistan in June, which camp was destroyed by U.S. airstrikes in October. With other Uighurs, he crossed into Pakistan, where local villagers gave him food and shelter until, in December, they were handed to Pakistani government officials, who turned them over to the U.S. military. He has been at Guantanamo since June 2002.
3. After and individual hearing in December 2004, a military tribunal determined that Parhat met its definition of an "enemy combatant." The court observed that the tribunal made this determination:

on the theory that he was“affiliated” with a Uighur independence group known as the East Turkistan Islamic Movement (ETIM), that ETIM was “associated” with al Qaida and the Taliban, and that ETIM is engaged in hostilities against the United States and its coalition
partners. The basis for the charge of Parhat’s “affiliation” with ETIM was that the Uighur camp at which he lived and received training on a rifle and pistol was run by an ETIM leader. The Tribunal acknowledged, however, that “no source document evidence was introduced to indicate . . . that the Detainee had actually joined ETIM, or that he himself had personally committed any hostile acts against the United States or its coalition partners.” The grounds for the charges that ETIM was “associated” with al Qaida and the Taliban, and that it is engaged in hostilities against the United States or its coalition partners, were statements in classified documents that do not state (or, in most instances, even describe) the sources or rationales for those statements. (Internal citations removed.)

The Parhat court concluded that the government's arguments "comes perilously close to suggesting that whatever the government says must be treated as true…" (at p.28). The court ordered that Parhat be released or promptly retried.

Gordon Hirabayashi's case comes from a different time:

1. After the attack on Pearl Harbor on December 7, 1941, the President issued Executive Order 9066, authorizing the military to exclude any or all persons from designated areas. Under this authority, General John L. DeWitt first imposed a Pacific Coast curfew, and then ordered the registration and evacuation of all Japanese Americans to detention camps. Congress passed a statute making it a crime to disobey these military orders.
2. In 1942, Gordon Hirabayashi, a senior at the University of Washington, was arrested and convicted of violating curfew and failing to report for evacuation. He challenged the race-based military regulations as violating the Equal Protection Clause of the Constitution.
3. In upholding Hirabayashi's curfew conviction, the Supreme Court emphasized its deference to military judgment:

Whatever views we may entertain regarding the loyalty to this country of the citizens of Japanese ancestry, we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it. (Emphasis added.)

Note that it was crucial to this determination that time was of the essence. The Court, with some reluctance, authorized temporary curfew and evacuation orders on the theory that the military's judgment was that there was no time to make individualized loyalty determinations. It turned out that the main evidence for the military's judgment was a Final Report issued by General DeWitt. In 1982 it was discovered that the Government had doctored the Final Report and tried to destroy all the copies of the original report. The original report had stated that

It was impossible to establish the identity of the loyal and the disloyal with any degree of safety. It was not that there was insufficient time in which to make such a determination; it was simply a matter of facing the realities that a positive determination could not be made, that an exact separation of the 'sheep from the goats' was unfeasible. (Emphasis added.)

General DeWitt's personal views ("A Jap's a Jap. It makes no difference whether the Jap is a citizen or not."") had been widely reported. Understanding that the bald assertion that Japanese Americans could never be determined to be loyal Americans would not pass Constitutional muster, government attorneys altered the document and massaged the "military judgment" so that the convictions would stand up to Supreme Court review. Moreover, the government attorneys hid from the Court the fact that it had evidence in its possession that contradicted conclusions in the Final Report regarding the military dangers posed by Japanese Americans. Based on these discoveries, Hirabayashi's conviction was vacated in 1987.

There are, of course major differences between these two cases. Parhat was not a case explicitly about racial bias, although one suspects that, had Parhat not been Muslim, he might not have ended up in detention. Once forced to reveal its evidence in a tribunal, the government's case against Parhat was merely weak, not apparently fraudulent. Most importantly, Parhat has prevailed in the (delayed) first instance, rather than waiting 45 years for the vindication of history.

But the core idea that links these cases is the requirement that there must at some point be effective review of military judgment. My point is not that the military or the government is evil or bad. All human institutions are run by human beings, and any human process unchecked by objective review is liable to be exploited or simply carelessly imposed. And then other human beings suffer.

What have you been doing over the last six years? Marriages, funerals, births and birthdays. Carpool headaches and soccer games and school performances. Seasons of change. Huzaifa Parhat sat in isolation at Guantanamo. Last year he asked his lawyers to get a message to his wife that she should remarry.

Here's an observation from Dahlia Lithwick on the Heller decision (concluding that the Second Amendment guarantees an individual right to own a handgun):

But I must first pass along this rather brilliant observation from professor Stephen Wermiel from American University, who wonders why none of the dissenters cautioned the majority that today's decision"will almost certainly cause more Americans to be killed." (Boumediene,
Scalia, J. dissenting.)

Boumediene, of course, is the recent Guantanamo detainee habeas corpus case in which the majority saw fit to give people in American custody a day in American court. Scalia, in dissent, thought it important to accentuate the negative. There has been a lively discussion among Akron Law faculty, and DIck Aynes, John F. Seiberling Chair of Constitutional Law and Director of the Constitutional Law Center laid it out for me:

I do think this [issue of the deaths that will result from Heller] is addressed — albeit in a subdued manner– in Justice Breyer's dissent. The Court's web site numbers each of the dissents as beginning at p. one.

He notes the D.C. ord.  concerns handguns "which are specially linked to urban gun death and injuries…." (p. 2) On the same p. he notes that handguns are the overwhelming choice of criminals.

P 14: "No one doubts the constitutional importance of the statute's basic objective, saving lives." On the same p. he quotes a district committee's conclusion that the goal of the ordinance was to "reduce . . . run-related deaths…" The summary, with statistics about gun deaths, continues on the next several pages.

P. 24 talking about one amici submissions: "…suggests that, statistically speaking, the District's law has indeed had positive life-saving effects."

P. 26: concludes that the statute "seeks to further the sort of life-preserving and public-safety interest that the Court has called 'compelling.'"

P. 40: litigation over the details of what gun regulation can exist "threatens to leave cities without effective protection against gun violence. . ."

Breyer also cites the studies coming to a contrary conclusion. Ultimately, his position is that where the studies (& counter studies) conflict, the Court should defer the legislative body which is in a better position to judge local conditions than the court.  I suspect this view of the case "tied his hands" on what he though he could do from a rhetorical standpoint.

So because Breyer wants to make a point about judicial deference to the legislature, he puts his point delicately, whereas Scalia's hands are rhetorically untied (while blasting the Court for its lack of judicial deference to the executive).